Legalpedia Citation: (2023-05) Legalpedia 47943 (CA)

In the Court of Appeal

Holden at Lagos

Thu May 18, 2023

Suit Number: CA/L/473/2015

CORAM

OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL

ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL

FREDRICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL

PARTIES

OFOLIX INTERNATIONAL LIMITED  – APPELLANT

 

APPELLANTS

TEJU INVESTMENT AND PROPERTY CO. LTD. – RESPONDENT

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVDENCE, PRACTICE AND PROCEDURE, PROPERTY 

 

SUMMARY OF FACTS

The respondent is the owner of a warehouse, measuring 21,000 square feet, with its appurtenances situate and being at Plot 2, Block K, Ilasamaja Industrial Scheme, Ilasamaja, Lagos State (the premise/property). In the year 2000, the respondent let the appellant into possession of the premises, as a tenant, under an executed written tenancy agreement on an agreed rent for a period of two years. Later on, there was an oral agreement over the tenancy relationship. Subsequently, a dispute erupted between the parties over the rent payable for the premises. In February, 2010, the respondent issued and served the appellant the statutory notice to quit the property. The appellant did not deliver possession of the premises to the respondent despite the service of the statutory notice on it.  Sequel to that, the respondent besieged the lower court seeking reliefs.

In a considered judgment, the lower court granted the claim of the Respondent. The appellant was dissatisfied with the decision hence the instant appeal praying the court for “Reversal of the whole decision and dismissing the Claims of the Claimant/Respondent”.

 

HELD

Appeal Allowed in part

ISSUES

• Whether the Trial Court was right in holding that the Defendant/Appellant was a Tenant-at-Will?
• Whether the Trial Court was right in not considering the issue of jurisdiction as raised by the Defendant/Appellant before delving into the Trial of the substantive Suit?
• Whether the Trial Court was right in holding that the Claimant/Respondent had proved the sum of N5,950,000.00 (Five Million, Nine Hundred and Fifty Thousand Nair) as arrears of Rent in the circumstances of this case?
• Whether the Trial Court was right in holding that the Claimant/Respondent had proved the sum of N612,500.00 (Six Hundred and Twelve Thousand Five Hundred Naira) as mense profits in the circumstances of this case?
• Whether the learned Trial Judge was right in awarding the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) as cost to the Claimant/Respondent in the circumstances of this case?

RATIONES DECIDENDI

JURISDICTION – MEANING OF JURISDICTION AND WHEN A COURT IS VESTED WITH JURISDICTION

Issue of jurisdiction is numero uno in adjudication. The law compels the courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Ndual (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law.

Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548.

A court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court. – Per O. F. Ogbuinya, JCA

 

TENANCY AT WILL – MEANING AND SIGNIFICANCE OF TENANCY AT WILL

To begin with, the evolution of tenancy at will traces its paternity to the English law which Nigeria, a member of the Commonwealth, is a legatee. In Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229 at 243, Obaseki, JSC, incisively, confirmed:

A tenancy at will arises whenever a tenant with the consent of the owner occupies land as tenant (and not merely as a servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly [e.g. Mansfield & Sons Ltd. v. Botchin (1970) 2 Q. B. 612] or by implication common examples are where a tenant whose lease has expired holds over with the landlord’s permission without having yet  paid rent on a period basis. [See e.g. Meye v. Electric Transmission Ltd. 1942 Ch. 290]: where a tenant takes possession under a void lease or under a mere agreement for a lease and has not yet paid rent or where a person is allowed to occupy a house rent-free and for an indefinite period; and (usually) where a purchaser has been let into possession pending completion.

The significance of tenancy at will has been re-echoed by the apex court in an army of authorities, see African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391; Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 59; Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt. 1012) 470. – Per O. F. Ogbuinya, JCA

 

TENANCY AT WILL – FORMULATION OF TENANCY AT WILL BY ACTION/CONDUCT

Nota bene, the appellant’s tenancy had 31 st August in the successive years as its expiration date. Thus, when the appellant did not pay rent after the expiration of its tenancy on 31 st August, 2008, it occupied and possessed the warehouse on the permission of the respondent, its landlord. Evidence, emanating from both divides, galore that the appellant did not honour its obligation of rent payment thereafter. In that wise, the appellant was holding over the premises at the pleasure or happiness of the respondent. At once, the erstwhile/defunct yearly tenancy, birthed by exhibit B, transmuted into a tenancy at will. The law allows for conversion of yearly tenancy to tenancy at will and vice versa, see Odutola v. Papersack (Nig.) Ltd. (supra). – Per O. F. Ogbuinya, JCA

NOTICE TO QUIT – NOTICE TO QUIT FOR A TENANT AT WILL

By virtue of the provision of section 13(1) of Tenancy Law, Ch. T1, of Lagos State, 2011 and section 14(1) (a) of the Rent Control and Recovery of Residential Premises Law, Cap. R6, of Lagos State, 1997, a tenant at will is entitled to a week’s notice to quit a premises. It is trite law that service of appropriate notice of quit is sine qua non for determination of tenancy and to wrestle possession of rented property from a tenant. In point of fact, it has graduated to a statutory right of a tenant. The length of the notice to quit depends on the nature of the tenancy, see African Petroleum Ltd. v. Owodunni (supra); Iheanacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257; D.M.V. (Nig.) Ltd. v. N.P.A. (2019) 1 NWLR (Pt. 1652) 163. It appears though, that the law is inching to the point that defective notice of quit is curable by writ of summons, see Pillars (Nig.) Ltd. v. Desborders (2021) 12 NWLR (Pt. 1789) 122. It stems from the above legal anatomy, that issuance/service of notice to quit on a tenant is a condition-precedent to the institution of a valid action on recovery of premises. In the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atalegbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt.1536) 439. – Per O. F. Ogbuinya, JCA

RELIEF – IMPORTANCE OF RELIEF IN THE RIGHT PROCESS AND CONDUCT OF COURTS IN GRANTING RELIEFS

To begin with, relief, which is usually domiciled at the terminus of the appropriate process, summons or statement of claim or petition, occupies a kingly position in adjudication. Every statement of claim, which usually supercedes a writ of summons, terminates with a prayer/relief. Hence, its absence in the right process renders it incompetent and submissive to penalty of striking out, see Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. There is no gainsaying the fact that relief, inter alia, is one of the determinants of jurisdiction of court. In other words, relief is one of the barometer which a court uses in measuring the presence or absence of jurisdiction over an action, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394; Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Dec Oil & Gas Ltd. v. Shell (Nig.) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273. It is an elementary law, known for its antiquity, that a court of law is drained of the jurisdiction to grant a relief that is not claimed by a party to a suit, see Ochonma v. Unosi (1965) NMLR 321; Agu v. Odofin (1992) 3 SCNJ 161; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eagle Super Pack (Nig.) Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20; Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 547; Al-Hassan v. Ishaku (2016) 10 NWLR (pt. 1520) 230. The rational behind this ageless and inelastic principle of law is not far-fetched. A court of law is not clothed with the garment of a philanthropist that dishes out awards that are not solicited by recipients. For a court to make an order which no party has supplicated for and which the parties were not heard constitutes a gross infraction of the other party’s inviolable constitutional right to fair hearing as enshrined in section 36(1) of the Constitution, as amended, the fons et origo of our laws, see Umukoro Usikaro v. Itsekiri Communal Land Trustees (1991) 12 SCNJ 75 at 91/(1991) 2 NWLR (Pt. 172) 150; Kalejaiye v. LPDC (2019) 8 NWLR (Pt. 1674) 365. – Per O. F. Ogbuinya, JCA

COST – WHEN FACTS RELATING TO COST OF ACTION ARE NOT PLEADED

A microscopic examination of the respondent’s 17-paragraph statement of claim, which harbours no ambiguity, discloses that the respondent did not plead facts relating to cost of action and a fortiori offering any grain of evidence in proof of it. In other word, the cost claimed was an orphan as it had no pedestal/legal parentage to perch and claim any viability and validity. The respondent was stingy in its claim in the prayer 3 as there is no monetary sum attached to it. Alas, as it stands, the prayer is amorphous, nude, inchoate and lacking in specificity. It is a sterling illustration of a carte blanche to the lower court. – Per O. F. Ogbuinya, JCA

PERVERSE VERDICT – WHAT CONSTITUTES A PERVERSE VERDICT

A verdict of court is perverse when: it runs counter to the pleadings and evidence before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence, a court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112. – Per O. F. Ogbuinya, JCA

COURTS – DUTY OF A COURT IN A CIVIL CLAIM

It is a rudimentary law, in our adversarial system of adjudication, that the duty of a court, in a civil claim, is to merely render unto a party in accordance to his proven claim. In the eyes of the law, the award, sought to be expelled, is a gratuitous award par excellence. Indeed, it is a mirror image of a windfall. The position of the law is that a court of law is not a santa claus that dishes award to a recipient who never solicited for it. – Per O. F. Ogbuinya, JCA

COURTS – CONDUCT OF COURTS WHEN FINDING DISCLOSES NO HOSTILITY TO THE LETTER AND SPIRIT OF THE LAW

It will smell of judicial sacrilege to tinker with a finding that has no disclosed any ounce of hostility to the letter and spirit of the law. – Per O. F. Ogbuinya, JCA

EVIDENCE – CONDUCT OF THE COURT IN ASCERTAINING WEIGHT OF EVIDENCE

A castigation of a decision on the premise that a judgment is against the weight of evidence, usually couched as an omnibus ground, connotes that the decision of the trial court cannot be supported by the weight of evidence advanced by the successful party which the court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial court. In ascertaining the weight of evidence, the trial court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163)11; Agala v. OkusinA (2010) 10 NWLR (Pt. 1202) 412. – Per O. F. Ogbuinya, JCA

EVALUATION OF EVIDENCE – MEANING OF AND THE EXCLUSIVE DUTY OF THE TRIAL COURT IN EVALUATION OF EVIDENCE

Instructively, evaluation of evidence connotes the appraisal/ assessment of evidence, both viva voce and documentary before a court, and ascription of probative value to them which results in finding of fact. This primary evidentiary duty falls squarely within the exclusive preserve of a trial court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate court, to watch the witnesses, form impression on their demeanour and assess the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221; Young Shall Grow Motors Ltd. v. Onalaja (2021) 3 NWLR (Pt. 1763) 300; Obi v. Uzoewulu (2021) 8 NWLR (Pt. 1778) 352. An appellate court is disrobed of the vires to interfere with a finding of a trial court anchored on demeanour and credibility of witnesses, see Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt.1695) 289. To discharge the bounden duty, a trial court must show how and why it arrived at its finding of fact and final determination of the issues before it. It must be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It has to appraise the evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the evidence, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (P1355) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt.1652) 1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. – Per O. F. Ogbuinya, JCA

EVLAUTION OF DOCUMETARY EVIDENCE – CONCURRENT JURISDICTION OF TRIAL AND APPELLATE COURTS TO EVALUATE DOCUMENTARY EVIDENCE

Interestingly, the case-law gives the courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will harness from this co-ordinate jurisdiction in the appraisal of the sea of documentary evidence in the appeal. It is apropos to place on record, pronto, that the loads of documentary evidence, which cry for the interpretative attention of this court, fall squarely within the four walls of documents in that their contents are “expressed or described upon any substance by means of letters, figures or marks”, see section 258 of the Evidence Act, 2011. Nota bene, the law grants to the courts considerable latitude to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Aremu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apubo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. – Per O. F. Ogbuinya, JCA

LACK OF RESPONSE – IMPORT OF LACK OF RESPONSE

There is no evidence demonstrating that the respondent replied to the letter. The respondent’s lack of response to it carries some legal implications. The law imputes admission of its contents, in the glaring absence of response to it, to the respondent, see Mekwunye v. Imoukhuede (2019) NWLR (Pt. 1690) 439. The import of the presumed admission by conduct or representation, which the law has ladened and foisted on the respondent, has far-reaching consequence in the firmament of adjectival law. – Per O. F. Ogbuinya, JCA

MENSE PROFIT – MEANING OF MENSE PROFIT AND HOW IT DIFFERS FROM RENT

For a dispassionate consideration, it is imperative to appreciate the purport and hallmarks of mense profit since it is the cynosure of this grouch. The word “mense” owes its ancestry to the Latin word “medius” which connotes middle, intervening or immediate, see Osawaru v. Ezeiruka (1978) 6/7 SC 135. The expression “mense” profits has been described as another term for damages for trespass arising from the particular relationship of landlord and tenant. The term “mense profits” simply denotes intermediate profits – that is, profits accruing between two points of time – that is between the date when a defendant ceased to hold the premises as a tenant and the date he delivers up possession. There is wide dichotomy between rent and mense profits. Rent is liquidated whilst mense profits are not. Rent is operative during the subsistence of the tenancy, while mense profits start to run when the tenancy expired and the tenant holds over. The action for mense profits does not lie unless either the landlord has recovered possession, or the tenant’s interest in the land has come to an end, or his claim is joined with a claim for possession. The law is that mense profits are generally calculated on the yearly/annual value of the premises, see Osawaru v. Ezeiruka (supra); African Petroleum Ltd. v. Owodunni (supra); Debs v. Cenico Ltd. (1986) 3 NWLR (Pt. 32) 846; Ayinke v. Lawal (1994) 7 NWLR (Pt. 356) 263; Metal Const. (W.A.) Ltd. v. Aboderin (1998) 8 NWLR (Pt. 563) 538; Odutola v. Papersack (Nig.) Ltd. (supra). In a spirited bid to castrate the grant of the mense profits, the appellant pegged his grouse on the respondent’s failure to present expert evidence in proof thereof. In the first place, in law, where a party claims mense profits, it may be desirable, not imperative, to call an expert evidence – see Debs v. Cenico Ltd. (supra). – Per O. F. Ogbuinya, JCA

EXPERT – MEANING OF AN EXPERT AND THE ROLE OF THE COURT IN DETERMINING WHO AN EXPERT IS

However, since the grouch orbits around an expert evidence, the provision of section 68 of the Evidence Act, 2011 comes in handy. In this regard, it is germane to pluck it out whence it is domiciled in the statute book, ipsissima verba, as follows:

68. (1) When the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or act, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or question as to identity of handwriting or finger impressions, are admissible.

(2) Persons so specially skilled as mentioned in section (1) of this section are called experts. An expert is a person who is specially skilled in the field he is giving evidence.

He is one who has made the subject he speaks on a matter of particular study, practice or observation and possess a particular and special knowledge of the subject. He must be a person qualified to speak with some amount of authority by reason of his special training skill, mastery or familiarity with the subject matter in question see A-G, Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Rabiu v. Amadu (2013) 2 NWLR (Pt. 1337) 36. It can be garnered from this clear provision, that it is the court that decides whether or not a witness is an expert, in the areas catalogued in the provision, using his knowledge and skill as a template. A court is not bound to accept the evidence of an expert, see Seismograph Service Ltd. v. Onokpasa (1972) 4 SC 123; Seismograph Service Ltd. v. Ogbeni (1974) 4 SC 85; Vio v. Gharoro (2006) NWLR (Pt. 987); Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535; Oando (Nig.) Plc v. Adijere (WIA) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 407; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211; Rabiu v. Amadu (supra); Oando (Nig) Plc v. Adijere (WIA) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Okereke v. Umahi (2016) 11 NWLR (Pt.1524)438; Ladoja v. Ajimobi (supra); Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Blue v. State (2016) 15 NWLR (Pt. 1536) 363; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125. – Per O. F. Ogbuinya, JCA

CROSS EXAMINATION – FAILURE TO CROSS-EXAMINE A WITNESS

In the mind of the law, failure to cross-examine a witness on an essential point by an adversary constitutes an admission of it by the cross-examiner, see Goje v. Paye (2003) NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1681) 338. – Per O. F. Ogbuinya, JCA

UNCHALLENGED EVIDENCE – CONDUCT OF COURTS REGARDING UNCHALLENGED EVIDENCE

The law gives the courts the nod to act and rely on unchallenged evidence to reach a decision, see Cameroon Airlines v. Otutuizu (supra); Tanko v. Uchendu (2011) 18 NWLR (Pt. 1224) 253; Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225; Nwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; C.B.N. v. Okojie (2015) NWLR (Pt. 1479) 231. – Per O. F. Ogbuinya, JCA

IPSE DIXIT – MEANING OF IPSE DIXIT AND ITS WEIGHT/VALUE

In Debs v. Cenico Ltd. (supra), at 853, Oputa, JSC, incisively, declared:

Now ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual. There can be no question that a “mere ipse dixit” is admissible evidence but is evidence resting on the assertion of the one who made it. Where there is need for further proof “a mere ipse dixit” may not be enough.

In concurrence, His Lordship, Eso, JSC, re-echoed:

… I agree ….that there is nothing wrong with “ipse, dixit” as a piece of evidence. It is admissible and the wright to be placed upon it would depend on circumstances. A party’s ipse dixit could be cross-examined like any other evidence. It could be impeached with another evidence. He could be admitted. It could be left just uncontradicted. It is for the court, in evaluating, to take every circumstance into consideration.

It can be garnered from the oracular pronouncement, warehoused in an ex-cathedra authority, that wears the insignia of finality, that ipse dixit runs pari passu with other pieces of evidence. – Per O. F. Ogbuinya, JCA

EVIDENCE – WHEN EVIDENCE IS CREDIBLE OR CONCLUSIVE

A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba- Ikeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. – Per O. F. Ogbuinya, JCA

PROOF – MEANING OF PROOF IN LAW Proof

Proof, in law, is a process by which the existence of facts is established to the satisfaction of the court, see section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166. – Per O. F. Ogbuinya, JCA

CASES CITED

NIL

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Tenancy Law of Lagos State, 2011; 

• Rent Control Law, Cap R6, Laws of Lagos State, 2003

• Evidence Act, 2011

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